Election Lawyer’s Vote-by-Mail Crusade Meets GOP Resistance

(Bloomberg Businessweek) -- Five months before Election Day, the battle for the White House is already being fought in the courts—around the contentious issue of voting by mail.

Marc Elias, the man President Donald Trump has called the Democrats’ “best Election stealing lawyer,” is spearheading lawsuits in 13 states seeking to overturn constraints on voting by mail, with early signs of success. Democrats argue the effort is critical to safety and fairness during the pandemic. Republicans warn of voter fraud, which experts say has been rare.

“There are hundreds of thousands, if not millions, of voters who face disenfranchisement unless these restrictive laws are struck down for the 2020 election,” says Elias, a 51-year-old partner at Perkins Coie LLP and longtime advocate for the Democratic Party. Given how closely divided some swing states have been in recent years, the disputed voting rules could tip the election to Trump or his rival, Joe Biden, he says.

That’s the only thing the GOP says he’s got right.

State laws passed to protect the integrity of the vote shouldn’t be discarded in a time of crisis, according to Republican National Committee spokesman Mike Reed.

“Democrats are trying to strip all these protections away,” Reed says, adding that the RNC is especially concerned about efforts to force some states to automatically send ballots to everyone on their voter rolls instead of making voters request them. Ballots could be sent to people who have moved out of state or died, he says.

“You could have thousands—potentially millions—of ballots floating around, which really opens up the possibility of fraud,” Reed says. “You can absolutely have something like this flip an election.”

More Americans are struck by lightning than commit voter fraud, according to Wendy Weiser, who heads a democracy program at New York University’s Brennan Center for Justice and isn’t involved in the voting litigation. Her analysis is echoed by a number of judges who have ruled for Elias. Absentee and mail voting “are well-established forms of voting in the American election system, with lots of security features in place,” Weiser says.

Working for the national Democratic Party, a nonprofit associated with the Priorities USA Action committee supporting Biden, and others, Elias is directing a team of more than 50 attorneys from his home in Great Falls, Virginia, a suburb of Washington where he’s been sheltering in place with his wife and two college-age children. All told, he has 33 voting rights lawsuits going in 17 states.

Most of his recent suits demand that state voting laws be amended to include what he calls the “four pillars” of a fair vote: free or prepaid postage, an assurance that all ballots postmarked by Election Day will be counted, fair signature matching procedures, and rules allowing community organizers to gather and deliver sealed ballots. Laws to the contrary violate the U.S. Constitution, state constitutions, or federal statutes, he argues, and particularly harm groups that tend to lean Democratic.

“I am constantly focused on the epidemic of uncounted ballots from eligible voters in American elections,” he says.

Efforts to expand mail-in voting amid the coronavirus outbreak have drawn a fiery response from the president, who threatened last week to withhold federal money for Michigan and Nevada if they keep it up. On Wednesday he blasted social media platforms that “silence conservative voices” after Twitter Inc. added a link to a fact check rebutting his tweet that “there is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent.”

Trump has made no secret of his reasons. Criticizing House Democrats’ efforts to include absentee balloting in the first economic stimulus bill, he said in March that “they had things, levels of voting, that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”

It’s a theme he has sounded for years, including in a November 2018 Twitter post about the close contest for Florida governor. Although Elias incurred a loss as Rick Scott edged out his client, he won a federal appeals court ruling that extended by almost two weeks the deadline for verifying signatures on mail-in ballots, a precedent that could be decisive in the battleground state this November.

The Republican National Committee, which has built a $20 million war chest to beat back the lawsuits, says Democrats are just trying to promote a liberal agenda. The “shameful” election reforms Elias is pushing for will “take away the safeguards that ensure the integrity of our election process,” Chairwoman Ronna McDaniel said in a Fox News clip posted on a website the RNC launched to counter his efforts.

Elias has already notched some victories in the fast-moving litigation. In Michigan, state election officials in April settled a lawsuit by agreeing to alert voters if their signature is rejected and give them a chance to fix it. And last Friday a Montana state court struck down a ban on ballot collection as well as a requirement that mailed ballots be received, rather than postmarked, by Election Day. The rules “significantly suppress voter turnout,” the judge said, adding that “there has never been a documented case of absentee voter fraud” in Montana.

The RNC on Thursday declared victory in a Pennsylvania case, saying it had “won a Marc Elias-backed lawsuit,” although the ruling sent the case on to the state's supreme court rather than addressing its merits. Elias said it was “not a big setback” and that he would appeal.

Two of Elias’s most crucial cases are in South Carolina and Texas, where he has sued to allow all residents, not just those who are disabled or at least 65, to request absentee ballots because of the virus.

“The significance of rules governing absentee or mail voting has dramatically increased,” says NYU’s Weiser. “There are a lot of unfair obstacles to voting by mail, and rules that prevent eligible ballots from being counted or cast.”

Elias, who studied political science at Hamilton College and earned a law degree at Duke University, is perhaps best known for his work on the eight-month recount fight that resulted in Al Franken’s winning his U.S. Senate seat in 2008, which gave Democrats a filibuster-proof majority for a few months during President Barack Obama’s first term. He also prevailed in four racial gerrymandering cases that went to the Supreme Court from 2015 to 2019 and, in 2017, won pivotal redistricting battles in North Carolina.

He’s had his controversies. As general counsel for Hillary Clinton’s presidential campaign, Elias was embroiled in the Russian collusion probe after hiring the investigative firm Fusion GPS, which produced the Steele dossier.

The stakes of his current fight are clear in Wisconsin’s April 7 primary, says Elias, who represented the DNC and the state’s Democratic Party in a lawsuit to increase the use of voting by mail. In-person balloting went ahead, and dozens of voters contracted the virus.

While the suit failed in most respects, Elias won an extension on registration to vote by mail. That narrow win alone led to 142,000 more votes in Wisconsin’s primary, he says. By one reckoning, Trump won the 2016 election by some 80,000 votes across Wisconsin, Michigan, and Pennsylvania.

“That was one deadline in one low-turnout primary in one state,” Elias says. “When you start to do the math about how impactful these lawsuits are, the numbers add up pretty quickly.” —With Laurel Brubaker Calkins

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